The trustee will take a fee if the trust is of such a nature that it does or may require an estate in the trustee beyond the term of his own life.1 Thus it was held in one case, that the trustee took a fee determinable upon the arriving of a person at the age of twenty-one, where the devise was in trust till the youngest son of the devisor arrived at that age, and the devisees named were then to come into possession of the estate. So a devise to A and B, in trust for a parish, gives the trustees named a fee, though no words of inheritance are used. Accordingly, where land is devised to trustees, to sell and apply the proceeds without any limitation as to the continuation of the trust, the title will remain in the trustees till the sale, unless they are sooner removed by the court.1 But where an estate was conveyed in trust to pay debts, and, after the payment of such debts, in trust to A B, it was held, that A B had an immediate estate in trust in the surplus.5 45. But, after all, these are merely rules of construction; and, if a less estate than a fee is expressly given, courts cannot enlarge it by construction, even though it would be inadequate to effect the trusts, if not considered as a fee. But where the conveyance was to A and his successors in office, in trust for a religious society, A took only a life-estate. Nor could it be an executed use in the society, so as to hold it after his death, because it could only be executed during his life, there being no limitation to his heirs. So if there are no words which give the trustees an estate beyond the time within which the trust is to be executed, the estate of the trustee determines when that period expires. But if the estate limited 860; Doe v. Nicholls, 1 B. & C. 336; Doe v. Ewart, 7 A. & E. 636; Morton v. Barrett, 22 Me. 257; Smith v. Metcalf, 1 Head, 64; Wells v. Heath, 10 Gray, 25; Attorney-General v. Proprietors, &c., 3 Gray, 48; Cleveland v. Hallett, 6 Cush. 407; Renziehausen ". Keyser, 48 Penn. St. 351. 1 Cleveland v. Hallett, 6 Cush. 403; Farquharson v. Eichelberger, 15 Md. 73; Wilcox v. Wheeler, 47 N. H. 490. 48. 2 Pearce v. Savage, 45 Me. 90; Deering v. Adams, 37 Me. 264. Wells v. Heath, 10 Gray, 25; Attorney-General v. Proprietors, &c., 8 Gray, 4 Cumberland v. Graves, 9 Barb. 595. 1 Cruise, Dig. 369; Doe v. Timins, 1 B. & Ald. 547. 6 Warter v. Hutchinson, 1 B. & C. 721; Evans v. King, 3 Jones, Eq. 887. 'Baptist Society v. Hazen, 100 Mass. 322. be a fee, though the trust may be performed in a limited period of time, the estate in the trustee will not determine when the trust has been executed, if no particular time is fixed at which the trust shall cease, as where the limitation is to A B and his heirs to raise £1,000. Accordingly, where a trustee is appointed to hold the estate of a married [*188] woman, to protect it from the husband, and the marriage relation comes to an end, his estate at once becomes executed in the person who is to take it, the wife if living, or, if she is dead, her heirs at law. Where, therefore, a trust was created in favor of a feme sole, in contemplation of her marriage then about to take place, it determined upon her becoming discovert, and did not revive upon her marrying again.3 46. Upon the principles above stated, as soon as a vendor signs an agreement of sale with a purchaser, if the vendor has a good title of inheritance, it is held in equity that the purchaser has an immediate estate in fee-simple. Unless a smaller estate is expressly bargained for, it is understood to be a conveyance of whatever estate the vendor has, and that a fee may thereby pass without the word "heirs." 4 47. Under some circumstances, equity, discarding the technical rules of law which discriminate between real and personal property, treats money as real estate imbued with the character and incidents of real estate, by considering that as done and actually existing which ought to be done. Thus a cestui que trust may follow the trust-fund into land purchased 1 Doe v. Nicholls, 1 B. & C. 841; Doe v. Edlin, 4 A. & E. 582; Doe v. Ewart, 7 A. & E. 636. In Doe v. Davies, 1 Q. B. 437, Patteson, J., says: "If the devise be for purposes which are to last only for a certain time, the use of the word "heirs" will not give a fee; the devise will be cut down to the time necessary for the purposes. But if a fee be given in terms, with trusts which, by their nature, extend over an indefinite time, it is not so; if no particular time can be fixed at which the trusts shall end, the estate cannot be cut down." Selden v. Vermilya, 3 Comst. 525; Comby v. McMichael, 19 Ala. 747; Steacy v. Rice, 27 Penn. St. 75. 2 Liptrot v. Holmes, 1 Ga. 381; Bush's Appeal, 33 Penn. St. 85; Steacy v. Rice, 27 Penn. St. 75; Morgan v. Moore, 3 Gray, 323. 8 Wells v. McCall, 64 Penn. St. 207, 214. 4 Bower v. Cooper, 2 Hare, 408; Wms. Real Prop. 137. Brothers v. Porter, 6 B. Mon. 106; Lewin, Trusts, 2d ed. 668. with it by his trustee.1 So if lands are directed to be sold and the money laid out in purchasing other lands, to be settled in a particular manner, equity will regard those who are entitled to the estate as already in possession of the estates which they are to have. And the same will be true, from whatever source the money is derived, if received with a direction to be laid out in land, the grantee or devisee who has accepted the engagement becoming a trustee of the equitable interest of the persons entitled to the produce of the sale.3 Money accordingly agreed or directed to be laid out in land is, for this purpose, considered as real estate in descending to heirs, instead of going to executors, in being subject to curtesy, and in passing by a devise of lands and hereditaments.* [*189] And if a purchaser of an estate die before the *deed is delivered, the equitable estate will descend to his heir, who may compel the application of the personal estate of the deceased in payment of the purchase-money.5 48. Another difference between the rules regulating legal estates and trusts applies to contingent remainders. By the common law, if the particular estate by which such a remainder is supported is destroyed by the act of the tenant before the remainder becomes vested, the remainder is itself destroyed. But no such consequence will follow, in respect to a contingent remainder of the equitable ownership, by any act proceeding from the tenant of a prior particular estate of the same equitable ownership. And a reason for this is, that trusts reject all the rules founded on the principles of tenure, by which there must always be a seisin of the estate; and if that of the tenant of the freehold fails before the remainderman is ready to take it, it reverts to another; so that, to adopt the illustration of a writer, "if an estate be conveyed unto and to the use of B, in trust for B for life, and, after his death, upon a trust in favor of the children of C, the trust for the children does not fail by the death of B before the birth of a 1 Wms. Real Prop. 137; 1 Prest. Est. 185. 22 Flint, Real Prop. 800. Sand. Uses, 298. 2 Flint, Real Prop. 801; Sand. Uses, 300; Lewin, Trusts, 2d ed. $68; Houghton v. Hapgood, 13 Pick. 154, 158. Wms. Real Prop. 188. 61 Prest. Abst. 146. child of C (as it would have done if limited by the way of use), but it subsists for the benefit of after-born children. In short, the equitable effect of the trust is commensurate with the legal effect of an executory use (as distinguished from a contingent remainder), both equally rejecting the strict rules of the common law."2 49. Another marked difference between estates at law and in equity consisted in the distinction made between the right of widows to dower in trust estates and that of husbands to curtesy. Equity gave husbands of cestuis que trust in fee a right to curtesy in their estates, and it is said that the * courts were inclined to apply a similar rule to the [*190] dower of widows. But so many of the estates in the kingdom had been conveyed to uses for the very purpose of preventing claims to dower, that it was found it would produce great confusion, if, under the statute of uses, they were to hold a different rule as to trusts from that previously applied to uses. It was accordingly held, as an imperative rule of law, that widows were not entitled to dower out of equitable estates until the late statute of 3 and 4 Wm. IV. c. 105, which altered the law in this respect. It was, however, held to be a fraud in the husband secretly to convey his estate to a trustee for his own benefit, just before his marriage, in order to defeat the claim of his wife to dower.4 1 Ante, pp. 115, #118, *140. 21 Spence, Eq. Jur. 505; Fearne, Cont. Rem. 304, 305; ante, p. *120. See Scott v. Scarborough, 1 Beav. 168. Though to understand the application of the above propositions assumes the knowledge of the doctrine of remainders, it seemed necessary to anticipate what will be explained hereafter when treating of remainders in their order. 1 Spence, Eq. Jur. 801; Co. Lit. 290 b, note 249, § 14; D'Arcy v. Blake, 2 Sch. & L. 288; Burgess v. Wheate, 1 W. Bl. 182. 41 Cruise, Dig. 411. See also Brewer v. Connell, 11 Humph. 500. In Vermont, the grantee in such a case would be held a trustee for the wife. Jenny v. Jenny, 24 Vt. 324. But such conveyance would not be impeached at law. Baker v. Chase, 6 Hill, 482. SECTION III. HOW CREATED, DECLARED, AND TRANSFERRED. 1. Prior to statute of frauds, might be done by parol. 2. What required as proof by statute of frauds. 8. Statute provides for creating and for transferring trusts. 4. What writing is sufficient to declare a trust. 5. What form of instrument sufficient to transfer it. 6. Declaration may be before or after conveyance to trustee. 7. 8. Of trusts raised by precatory words in a will. 9. Not necessary to convey legal estate to create a trust. 10. Trusts may be conveyed by a simple declaration. 11. Trust, when created, only extinguished by union with legal estate. 12. No one but owner of legal estate can declare a trust. 18. Trust, if accepted, may be discharged, how. 14. Effect of refusal to accept a trust. 15. Of survivorship of trust in several trustees. 16. Of trust surviving in case of personal confidence. 17. Distinction between a power and trust, in surviving. 18. Equity never wants for a trustee. 19. When a trustee takes the estate of the old one. 20, 21. When necessary for old trustee to convey to the new. 22. New trustee stands in place of the old. 23. How far trustee can invalidate a trust. 24. Effect upon a trust of devise by trustee. 25. Effect of conveyance of trust-estate by trustee. 26. Of conveyances by trustees to preserve remainders. 27. Effect of union of legal and equitable estates. 28. When husband held trustee for wife. 29. When a union of legal and equitable estates causes no merger. 1. AFTER this inquiry into the extent to which the rules in relation to the nature, duration, qualities, and incidents of legal estates are applied by courts of equity to trusts, it seems proper to inquire how trusts may be created, declared, and transferred. It has already been shown, that, whenever a conveyance of land was made with an intent to secure the benefits of it to a third person, equity enforced this intent through the conscience of him who took the legal estate. Nor did it matter how this intention was expressed or de |